### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03
- 19
- 00405
- CR

Reymundo Montiel , Appellant

v. The State of Texas , Appellee

FROM THE 207TH DISTRICT COURT OF HAYS COUNTY NO. CR
- 16
- 0379
- E , THE HONORABLE JACK H. ROBISON , JUDGE PRESIDING

M E M O R A N D U M O P I N I O N
Reymundo Montiel was char ged with two counts of aggravate d sexual assault involving his thirteen

- year - old niece B.M. and two counts of indecency with a child by contact involving his ten

- year - old niece Y.M. See Tex. Penal Code §§ 2 1.11, 22.021. The indictment also contained four enhancement paragraphs alleging that Montiel was previously convicted of four counts of aggravated battery in ano ther state. See id. § 12.42 (d)

. The jury convicted Montiel of all four charges an d found that he had previous ly been convicte d of two sequential felon y offense s , and Montiel wa s sentenced to 99 years ’ imprisonment for both aggravated

sexual

- a ssault char ges and to 6 0 years ’ imprisonment for both indece ncy charges. See id. On appeal, M o ntiel contends that the trial court erred during the guilt

- innocence phase by allowing th e ou tcry witnesses to testify, p rohibi ting him from cross - examining B.M. about the contents of her juvenile record , and de nying his request to question the prosecutor as a witness . Montiel further a rgues that the evidence supporting the enhancement allegations was insufficient to2

support the jury ’ s f

indings and that the trial court erred d uring the punishment phase by admitting evidence of prior c onvictions and allowi n g a n unqualified witness to t e sti fy as a fingerprint

- identification expert

. We will affirm the trial court ’ s j udgmen ts of conviction.

BACKGROUND Montiel moved into his sister ’ s home and lived with her and her children, including B.M. and Y.M. After M ontiel had lived in the home for some time, B.M . informed her
aunt Maria Garcia that Montiel had se xually abused her, and Garcia and B.M. info rmed B.M. ’ s father about the abuse . Around this same time, B.M. was expelled from her school an d enrolled
at the Juvenile Justice Alternative Education Pro gram, which was run by the Hays County Juvenile Probatio n Department

. After being en rolled f or a few months , B.M. informed several school officials that Montiel h ad sexually abused her

. Once the officials learned about the abuse, they called the police and Child Protective Service s. Subs equently, Vanessa Paul ini condu cted forensic interviews for B.M. and Y.M. at a child advocacy center

. T he police ar reste d Mo nti el ,

a nd he was charged with two c ou nt s of aggravated sexual assault and two coun ts o f indecency with a child by contact. The indictment alleged that Montiel had been convicted of four prior felony offenses in Illinois.

Before trial, Garcia was designa ted as the outcry witness for the off ense s involv ing B .M. , and Paulini was d esignated as the o utc ry witnes s for the off enses involving
Y.M. At trial, B.M., Y.M. , their mother , Garcia, Paulin i, an emplo yee of Child Protective Services, several police offic ers, and expert witnesses testif ied

. Afte r considerin g the evidence
pre sented at trial, the jury found Montiel gui lty of all four charges.

At the sta rt of the pu nishment phase, Montiel pleaded “ not true ” to the enha ncement allegations in the indictment. In the punishment phase, several w itness es testif ied ,3

includi ng Matthew Grantham, a Hays County District Attorney ’ s Office investigator

. Grantham

was designated as an expert in fing erprint identification. During Grantham ’ s testimony, the follo wing exhibits were admitted into evid ence: Mo ntiel ’ s bo oking sh eet for the current offenses , a criminal his tory from Illinois, multiple judgments of conviction f rom Illinois, and a pen packet f rom Illinois. At the end of the punish ment phase, the jury found that Montiel had previously been convicted of tw o sequential fe lony offenses and sentenced him to 99 years ’ imprisonme nt for the aggrava ted

- sexua l

- as s ault convictions and to 60 years ’ imprison ment for the inde cency convictions.

Montiel appeals the trial court ’ s judgments of conviction.

D ISC USSION
I n his first issue on appeal, Montiel asserts that the trial court erred by admitting the te stimony of the two outcry witnes s es . In his second issue on appeal, Mont iel contends that the trial court erred by prohibiting him from cross

- examin ing B.M . r egardi ng he r juven ile record and by preventing him from questioning the prose cutor. I n his final issue, Mo ntiel argues that the evid ence supporting the jury ’ s findings regarding the enhancement al legations was insufficient , that the trial court err ed by admitti ng durin g th e punishment phase exhibits pertaining to criminal convictions fro m another sta te , and that the trial court erred by allowing Grantham to testify as an expert witness

. Outcry Witness Testimony

Du ring a hearing outsid e the pre sence of the jury, the S t ate i ndicated that it wanted to call an out c r y witness for each of the victims. Fir st , the S t ate informed the trial court that it intended to call B. M. ’ s au nt, Garcia, to testify as an outcry witness regarding B.M. ’ s4

statements to her

. Next, the S t ate informe d the t rial court that it int ended to call Paulini to testify
rega rding Y.M ’ s outcry to her during the for ensic interview. During the hearing, both Garcia and Paulini testified

.

In he r testimony, Garcia explain ed that B.M. made an outcry t o he r by stating that Montiel “ raped her ” but that B.M. did not provide any additional infor mation regarding the allegations. Next, Paulini testified that duri ng the forensic interview , Y.M. stated that Montiel

“ touched her in a nasty way ” when she was asleep in her room , motioned to her private area when discussing where Montiel touched her, sa id Montiel put his hand inside her underwear and touched “ it ” with h is fingers, related that Montiel also “ swiped ” her private a rea with his hand , and st ated that Monti el touched h er chest area under her bra . In he r testimony, Paulini also stated that she displayed a d rawing of a child during the interview and asked Y.M. to point to the

area s that Mo ntiel touched and that Y.M

. pointe d to an area that was “ outside of th[ e] line ” whe re the vagina was located on the drawing and to the nipple area

. After hearing Garcia ’ s and Paulini ’ s testimon ies and Monti el ’ s objections, the trial court overruled Montiel ’ s o b jections and

c oncluded that both witnesses could t estify as out cr y witnesses.

On appeal, Montiel recognizes th at article 38.072 of the Co de of Criminal
P rocedure sp e cifies that an outcry statement is not inadmissible on hearsay grounds in cas es involvi ng certain sexua l offenses against children if the s tatement “describ e [s]

. . . t he alleged offense,” is “made by the c hild,” and is “made to the first person, 18 years of age or older, other than the defend ant, to whom the child .

. . made a sta tement abo ut the offen se , ” and if the

“ tria l court finds , in a hearing con ducte d ou tside th e presence of the jury, that the state ment is reliable based on the time, content, and c ircumstances of the statement

. ” See Tex. C ode Crim.5

Proc. art. 38.07 2, § § 1, 2 ; see al so Tex. R. Evid. 801 (defi ning hearsay)

. H owever, M ontiel contends t hat the test imony from Garcia and Paulini was too general to qualify a s an outcry.

Regarding Gar cia ’ s outcry t estimony, Montiel asserts that Garcia generally testified that B.M. said that he r aped her but did not provide any additional d etails and that
Gar cia ’ s testim ony did not show whether B.M. understood what the word rap e means . Similarly, Monti el argu es that Paulini ’ s testimony was not specific enough to tell whether an offense

occurre d

. On the cont ra ry , Montiel conten ds that Pauli ni ’ s testimony reve al ed t hat Y. M. pointed
to the general chest ar ea and to an area outsid e the vagina on the drawing used in the interview and urges that this testimony might refer to to uching that the P enal Code does not prohibit

. Accordingly, Montiel as serts that Garcia an d Paulini we re not proper outcry wit nesses because their testimonies indicat ed that the statements from B.M. and Y.M. were no more than words giving “ a general allusion that somethin g i n the area of sexual abuse was going on. ” See G arc ia
v. State , 792 S .W .2d 88, 91 ( Tex. Crim. Ap p. 1990) ; s ee also Reyes v. State , 274 S.W.3 d 724, 727 (Tex. App.

— San Antonio 2008, pet. re f ’ d) ( explain ing that proper outcry witness is first adult to whom al leged victi m relate s “ how, when, and where ” abuse o ccurred (qu oting Han son v. State , 180 S.W.3d 7 26, 730 (T ex. App.

— Waco 2005, no pet.) ) )

. Trial co urts have “broad discret ion” when deciding what witnesses qualify as outcry witnesses, and appell ate courts review tho se determinations for an abuse of d iscre tion.
Garcia , 792 S.W. 2d at 91

- 9 2; see Rodgers v. State , 442 S.W.3d 547, 552 (Tex. App

. — D allas 2014, p et. ref ’ d); see also Foreman v. State , 995 S.W.2d 854, 8 59 (Tex. App.

— Austin 1999, pet. ref ’ d ) (noting that prior cases “establish the difficulty tha t can arise in identifying the proper

o u tcry witness, and the broad discretion of district cou rts in mak ing this determination” ). Under that standard, a trial court ’ s ruling will only be deemed an ab use of dis cretion if it is so clearly6

wrong as to lie ou tside “the zone of reasonab le disagreem en t,” Lopez v. State , 86 S.W.3d 228, 230 (Tex. Crim. Ap p. 2002), or is “arbitrary or unr easonable,” State v. Mechler , 153 S.W.3d 435, 439 (Tex. Crim. App. 2005). W hen rev ie wing a tr ial court ’ s ruling on th e admissi b ility of an outcry sta tement , appellate courts cons ider the e vidence that was before the trial cour t at the time of its ruling. See Wh itten v. S tate , No. 07

- 12

- 00200

- CR, 2013 WL 4711198, at *5 (Tex. App.

— Am aril lo Aug. 27, 2013, pet. ref ’ d) (mem. op., not design at ed for publication)

. “ If the tr ial
court ’ s evidentiary ruling is correct under any app licable theory of law, it will not be disturbed even if the trial court gave a wrong or insufficient reason for the ruling

. ” Johnson v. State , 490 S.W.3d 895, 90 8 (Te x. C rim. App. 2016)

.

“ T he admissio n of inadmissible hearsay constitutes nonconstitution al error

. ” See Chapman v. State , 150 S.W.3d 809, 814 (Tex. App.

— Houston [14th Dist. ] 2004, pet. r ef ’ d). Accordingl y, the erro r must be disregarded unless it affect ed a defenda nt ’ s substant ial rights.
Se e Tex. R. App. P. 44.2 (b)

. Any error stemming from the admission o f inadm issible hearsay

“ will be considered harmless if, after examining the r ecord as a whole, we ar e reasonab l y assured that the error did not influ en ce the jury ’ s verdict or had but a sli ght effect. ” Linney v. State , 401 S.W.3d 764, 780 (Tex. App.

— Hous ton [14 th Dist.] 2013, pet. ref ’ d). Moreover , courts have consistently held th at any error from the a dmission o f an outcry wi tness ’ s testimony is harm l ess if the same evidence is admitted i nto evidence t hrough other testimony without objecti on . See Moody v. Stat e , 543 S.W.3d 309, 314 (Tex. App.

— Eastland 2017, pet. re f ’ d) (mem. op.) (concluding that defen dant was no t harmed because “ victi m testified befo re the jury without obj ec tion to the sa me facts ” ); G onzales v. State , 477 S.W.3d 475, 479 (Tex. App.

— Fort Worth 2015, pet

. ref ’ d) (determining that any error was h armless where victim provided testimony

corr oborating o utcry witness ’ s testimony )

.7 “ We need not determine whether th e trial court ” abused its discretion by allowi ng Garcia and Pa ulin i to testify as outcry witnesses “ because we conclude that any error ” would have been harmle ss. See He rnandez v. State , No. 05

- 12

- 01 118

- CR, 2014 WL 1178 303, at * 3 ( Tex. App.

— Dallas Ma r. 21, 20 14, no pet. ) (me m. op., not designated for publication) . During the trial , B .M . and Y.M. testified extensively re garding the abuse and provided e ven more details tha n either of th e outcry wi tnesses did

. Cf. Gonzales , 477 S.W .3 d at 479 (noting when
exp la ining that e rror was harmless th at victim “ provided greater detail ” tha n out cry witness ). In particular, B.M. test ified that Montie l entered her be droom at night using his cellph one as a light, got into her bed, removed her sho r ts, got on top of her whi le she was on her back, ins erted his
p enis into her vagina, and bega n “ humping ” her . Next, B.M. explain ed that Monti el got up from the bed and lef

t the room after he “ finished ” and that there was a sticky substance on her leg. In addition , B.M. testified that Mo ntiel engaged in the same conduct on other occasion s but that she did not remember ho w many time s . Regarding other incident s , B.M. explained that Montiel removed her clothing whi le she w as in the living room and inserted h is penis into her vagina and that he fo rced h er to place her mout h “ on his private part ” when they were near the bath room. I n her testimony , Y .M. related that Montiel woke her up one night by putting his hand in side her underw ear , that she felt his hand o n her vagina , and that hi s f ingers were making a circula r motion . Further, Y.M. testified that Montiel also t ouched her nipple u nder her b ra . Moreover,
B.M. and Y.M. ’ s mother testified during the trial that Mon tiel admitted that he had sex with B.M., was concerne d t hat she m ight “ be pre gnant by him, ” and wanted B.M. to have an abortion if she was pregnant

.

Additionally, recordings o f the forensic intervi ews for B.M. and Y.M. were admitted into evidence du ring Paulini ’ s testimony, and Montiel stated that he had no objection to8

t heir admission and that he wanted th e recordings a dmitted “ for trial p urp oses. ” See Rogers v.
State , 853 S.W.2d 29, 35 (Tex. Crim. App. 1993) (stating g eneral rule “that error regarding improperly admitted evidence is waived if that same evidence is broug ht in later by the defendant or by the State without objection”). On the recor ding o f B.M. ’ s interview , B.M. related that M o ntie l “ raped ” her more than one time when she was thirteen . During the interview , B.M. also wrote do wn what Montiel did and speci f ied that he “ t ook off [her] shorts & underwear and got on top of [her] an d raped [her ]. ” After writing that statement, B.M. explained during the interview that Montie l ’ s “ private part ” “ on the front part of his body ” was plac ed inside her “ private part ” a nd that this o ccurred more than once. In Y.M. ’ s interview, she related that Montiel started touching her while she was asleep on her back, th at he touched her private

area with his fingers inside h er underw ear, and that he to uched her chest under her bra

. In addition, when asked to show on a drawing where Montiel touch ed her , Y.M. po inted to the breast are a and the ge nital area.

Accordingly, even if the trial court abused its discretion by allowing Garcia and Paulini to t estify as outcry witnesses, we would conclu de that Montiel was not ha rmed.
See Duncan v. State , 95 S. W.3d 669, 672 (Tex. App.

— H ouston [1 st Dist.] 2002, pet. ref ’ d) ( determin ing that error in admission of outcry witness ’ s hearsay testi mony was harml ess whe n similar evidence was presented wit hout objec tion through complainan t, doctor, and medical records) ; se e also Me rrit v. Sta te , 529 S. W.3d 549 , 557 (Tex . App.

— Houston [1 4th Dist.] 201 7, pet. ref ’ d) ( observing that any error from admission of forensic inter view er ’ s testimony was h arml ess where po lice o ffice r a nd complainant gave testimony that was more deta iled than forensic interviewer ’ s testimony ) ; Tex. R. App. P. 44.2(b) (requiring appellate courts to disre gard nonconstit utional errors that do not affect substantial rights)

.9 For these reasons, we o verrule Montiel ’ s first issue on appeal.

Juvenile Record and Questioning the Prosecutor

In his second issue on appeal, Mo ntiel argues that the trial co urt erred by denying
h is reque st to cross

- examine B.M. re gardi ng th e content s of her juv enile record a nd his request to
que stion the prosecutor as a material witness

.
Juvenile Record

Before trial, Montiel informed the trial court that he wanted to cross

- examine B.M. regarding her record from the Juvenile Justice Alternative Educatio n Program run by the
Ha ys County Juvenil e Probation Department

. Montiel asserted that B.M. had been placed in the alternative school program because o f her disciplina ry issues and because she h ad been expel led from he r p rio r school , that he r disciplinary issues continu ed at the alternative program, and that after she h ad bee n informe d that she wo uld be suffer ing additio nal disciplina ry conse quences due to her continued misbehavior , she told scho ol officials that Montie l had sexually abused her

. Accordingl y , Montiel urg ed that he should be able to cross - examine B.M. re garding her juvenile record because it was relevant to whet her she had a motive to fabricate the allegation s to “ tak e the hea t off

” herself when she told school of ficials about the abuse in Se pt ember 2015

. After lis t ening t o the parties ’ a rguments, the trial court ruled that Montiel could not cross

- examine B.M. regarding the content s of the record b ecause t her e was no logical connec tion between the j uvenil e record and a motive to lie about Mon tiel.

On appea l, Montiel simila rly argues that he should have been able to cross

examine B.M. reg arding her juvenile record because the ti ming of her outcry at school a s well as the mounting t rouble that she was faci ng supported his defensive theory that s he fa br icated the10

claims to deflect attention away from her misbehavior. Moreover, Mon tiel highlights that the Sup reme Court and the Court of Criminal Appeals have b oth explained that the Con fron tation Clause allows for the admission of evidence regarding a juvenile ’ s reco rd in certain circumstances.
See Davis v. Alaska , 415 U.S. 308 (1974); Irby v. State , 327 S.W.3d 138 (Tex. Crim. App. 201 0).

Under the Confron tatio n C lause, a defendant “ s hall enjoy the right . . . to be

con fronted with th e witness es agai nst him. ” U.S . Const. a mend. VI. T he purpose behind the Clause is “ to sec ure for the opposing party the opportunity of cross

- examination because that is ‘ the prin cipal means by wh ich th e believability of a witne ss and the truth of hi s testimony

are teste d. ’ ” Johnson , 490 S.W.3 d at 909 (quoting Davis , 415 U.S. at 316 )

. The Confron tation Clause allows a party to attack the credibility of witness es “ or to show their possible bias, self

in tere st, or mot ives in test ifying. ” Hammer v. State , 296 S.W.3d 555, 561 (Tex. Crim

. App. 200 9)

.

However, “ the right to cross

- examine is not unqualified. ” Johnson , 490 S.W.3d at 909. Trial co urts may limit the scope and extent of cross - examination prov ided that the limits do no t in fringe the guarantee o f “ an opportunity f or ef fective c ross - exami nation. ” Jo hnson
v. State , 4 33 S.W.3d 546 , 552 (T ex. Crim. App. 20 14) (quoting Delaware v. Van Arsda ll , 475 U.S. 673, 679 (1986) )

. Trial courts have “ wi de lati tude ” under the Confrontat ion Clause to impose limits on cross

- exam inat ion for multip l e reasons , including when the c ross - examination would be “ only margi nally relevant. ” Van Arsdall , 475 U.S. at 679 ; see also Castle v. State , 748 S .W.2d 2 30, 233 (Tex. Cr im. App. 1988) ( noting tha t “ the scope of cross

- exami nation is within t he control of the trial court and in the exercise of its own discretion ”) ; see also Tex. R. Evid. 401 (stating that evidence is relevant if “ it has any tendency t o make a fact more or l ess probable tha n it would be without the evidence ” and if “ the fa ct is of consequenc e in deter mining the action ” )

. Accordingly, ap p ellate courts review a trial court ’ s ruling on the admissibility of11

evidence fo r an abuse of discret ion. Johnson , 490 S.W. 3d at 908 ; see also id. at 909 (stating that trial court “ can abuse [it s] disc retion by excludi ng admissible evidence that is offered by the defendant to demonstrate the complainant ’ s motive to falsely accuse him of molestation ” )

.

“ In Texas, as in most jurisdictions, ju venile c riminal records and adjudications are not admis sible to impea ch the gen eral credibility of a testifying witness, even th ough the juvenile may be on probation and is technically in a ‘ vulnerable relation ship ’ with the State th roughout that probation ary peri od. ” Irby , 327 S.W.3d at 147

. Alth ough the Ru les of E viden c e exp ressl y forbid the use of these types of record s , R ule 609 contains an exception explaining that this type of evidence may be admissible whe n required by the Un ited St ates Constitution. See Tex.
R . Evid. 609. When discussing the interpl ay between the se types o f evidentiary prohibitions and constitutional gu a ran tees , the Supreme Court stated that evident iary rules protecting the confidenti ali ty of a ju venile off ender ’ s record cannot supplant the constitutional right to cross

examine a n ad verse witness for bias. Davis , 415 U.S. at 320 ; s ee also id. at 321 (S t ewart, J., concurring) (obser ving that Supreme Court ’ s holding was based on “ the ci rcumstances of this

cas e ” and does not suggest “ that t he C onstitution confers a right in every case t o impeach the general c redibility of a witness through cross

- examination about his past delinqu ency adjudications ” )

. More recently , the Cour t of C riminal Appeals has clarified t he nature of the interplay by e xplaining that “ [e] vidence that a witness is o n probation, i s facing p ending charges, or has a prior juveni le record is not relevant for purposes of showing bias or a motive t o testify absent some plaus ible connection bet ween that fact and the witness ’ s te stimony. ” Irby , 327 S.W.3d at 149

.

In this case, although Montiel a ss erted that B .M. ’ s facing potential disciplinary actions might have motiv ate d her to direct attention away from her self , he did n ot explain why12

she woul d have chosen to make false sex ual

- assault accusations against hi m . Cf. Hammer , 296 S.W.3d a t 56 7

- 69 ( determin ing that trial cou rt abused its discretion by exclu ding evidence indicating that complainant was angry with defendant (h er father) for taking her to hospital for sexual

- assault examination after sh e spent night away from hom e because that evidence was strong suppo rt for de fendant ’ s th eory that she had motive to f alsely accuse him of sexu al abuse )

. In any event, the ti ming of the a ccusation was critical, and if B.M. had motiv e to fabricate the allegations, she would have had that motive t he first t ime that she reported the abuse. See Irby , 327 S.W.3d at 153 . B efore th e trial court ma de its ruling regarding B.M. ’ s

reco rd , the outcry

- w itness hearing w as held. During that h ear ing, evidence was presented demonstrating that B.M

. durin g the summer had already told her aunt Garcia , her father , and other membe rs of her fa mily about the abuse before she mentioned the abuse to the school official s in September 2015. See id. at 153

- 54 (rejecting argument that defendant should be able
to cross

- examine victim about his juvenile deferred adjudication on theory that victim fabricated abuse allegations to his mother to avoid getting into trouble where victim had already told other people bef

ore telling his mother) ; see also Johnson , 490 S.W.3d at 911

- 13 ( explain i ng that evidence that juvenile v ic tim in sexu al

- abuse case had been charged with sexually assaulting his sister was relevant and s hould have bee n admitted , in part, becaus e evidence showed that j uvenile ’ s parents found out about his abusing his sister duri ng “ the same period of time ” that juv enile al leged that defendant had been sexua lly abusing him )

.

Accordingly , we conclude that the trial cour t did not abuse it s discretion by concluding that Montiel failed to make a logical connection between B.M. ’ s all ega tions and he r juv enile record and , there fore, by prohibiting cross - e xam inat ion regarding her record as irrelevant. See Irby , 3 27 S.W.3d at 1 54

.13

Question ing the Prosecutor

In the next set of arguments in his second issue, Montiel contend s that the tria l

cour t erred by denying his request to question the prosecutor in this ca se . During B.M. ’ s
t estimony , she stated that she did no t tell the for ensic examiner about an incident involving oral

sex because “ it ’ s disgusting ” but that she told the prosecutor a bout that incide nt before trial. After B.M. made that statement, Mo ntiel reque sted that he be given the opportunity to question th e prosecutor b ecause she was a witness. The trial co urt denied the request

. On appeal, Montiel
argue s that the trial cour t e rred because t he prosecutor was a mat erial witness in this c ase . More
sp ecifically, Montiel highlights that B.M. made no mention o f oral sex du ring her for ensic interview and contends that the prosecutor was a witness to B.M. ’ s in consistent statement
rega rding oral sex mad e shortly before tr ial.

Because Montiel is chall engin g the t rial court ’ s evident iary rul ing, we review that ruli ng for an abus e of discretion. See Burden v. State , 55 S.W.3d 608, 615 (Tex. Crim. App. 2001 ). Allowing a party to call oppo sing counsel as a witn ess during a criminal trial “ invariably confus [ es ] the di stinctions between advocate a nd witness ” and “ argum ent and testim ony. ” United States v. Schwartzbaum , 527 F.2d 249, 253 (2d Cir. 1975). For that reason, Texas law generally “ do es not perm it parties to call thei r opposing cou nsel to testify as a w itness. ” Garrett
v. State , No. 14

- 08

- 00413

- CR, 2009 WL 2365 621, at * 2 (Te x. App.

— Houston [14th Dist .] Aug. 4 , 2009, no pet.) (mem. op ., not designated for publication) ; see also Brown v . State , 92 1 S.W.2d 227, 231 (Tex. Crim. App. 199 6) (Keller , J., con cu rring) (explaining that “ [t]he

c oncepts of due process and f undamental fai rness require a separation between the State ’ s advocates and its witnesses ” ) . In fact, t he Court of Criminal Ap peals has e xplained that this type of questioning should on ly be allow ed where “ ther e is no feasible alternative for obtaining14

and presenting th e information to th e jury ” and where “ the testimony is essential, not merely relevant. ” Flores v. State , 155 S. W.3d 144 , 1 4 8 (Tex. Crim. App. 200 4) (addressing State questioning def

ense counsel); Garrett 2009 WL 2365621, at * 2 (explaining th at same analys is is applied when defense counsel tries to question prosecut or )

.

Regarding the absence of a f easible a lternativ e , we not e that th ere we re other alternatives to calling the prosec u tor as a w itness. As set out above, Montiel was seeking to ha ve the prosecu tor testify about a statement made by B.M. to the pro secutor, and B.M. was testifying when he made the req uest

. See Gar r ett , 2009 WL 2365621, a t *2 (noting that defendant failed t o meet fi r st pro ng where “ the complainant could have t estified to the same f a cts that appellant sought to elicit from ” prosecutor). Addit ionally , dur ing a pretrial hearing regarding this issue, the St ate explained that there was another witness to the con versation because a victim advocate was present when B.M. ma d e the state ment regarding an alle gation of abuse involving oral

sex. Moreover, we do not believe that M ontiel has shown that t he prosecu to r ’ s testimony was

es sential to his defense. See Flores , 155 S.W.3d at 149. During his cross

- examination of B.M.,
Mon tiel was abl e to present his theory that B.M. had previously made prior statements that were inco nsistent with the sexual abus e t hat she d escribed

. F or examp le , B.M. admitted that around the ti me that the sexual abuse was allegedly oc curring , she filled o ut a form for her altern ative school stat ing that she had never been sexually assaulted o r felt as though she were in danger o f being sexu ally a ss ault ed.

Ac cordingly, the trial court did not a buse its discretion by denying Montiel ’ s request to question the prosecutor. See Garrett , 2009 WL 2365621, at *2.

For these reasons, we overrule Montiel ’ s second issue on appeal.15

P rio r Con victions

In hi s final issue on appeal, Montiel presents seve ral related arg uments concerning sixt een exhibits that we re admi tted during the pu nishment phase . Those exhibits pertain ed to prior convi ctions from Whiteside County, Illinois. The first exhib it wa s a c opy of
t he criminal history for “ Reymundo Montiel Jr. , ” and the remaining exhibits are judgments and other acc ompanyin g documents rela ting to pr ior convictions for “ Reymundo Montiel Jr. ”

or “ Reymundo Montiel. ” Four of t he previous convictions w ere listed in the e nhancement
p aragraph s of the indictment alleging that Montiel had previously been convic ted of four felony offe nses of aggrav ated battery , and the jury charge for the punishment phase instructed the jury to consider whether Montiel was p reviously c onvic ted of two of t hose prior felony offenses when dete rmining whether his punishment range should be ele vated. See T ex . P enal Code § 12.42(d). Those prior convictions were admitted as S t ate ’ s exhibits five, eight, sixteen, and se venteen

.

In his first se t of ar gum e nts in his final issue , Montiel cont ends t hat the exhibits lacked sufficient identifiers linking those c on vi ctions to hi m . More specifically, Montiel argues that some of the exhibits lacked fingerp rints, pho togr aphs of the defendan t , and rel evant dates.
I n add ition, Mo ntiel ass erts that the indi ctment in the current case li sted his name as “ Reymundo Montiel ” but that many of the exhibits were records for “ Reymundo Montiel, J r. ” Although Montiel mentions in this set of arguments tha t the exh ibits should n ot hav e been admitted, h is arguments seem f

ocu sed on whether the re was sufficient evidence to support the j ury ’ s determin ation that he had previously been convic ted of two felony offenses when the jury assessed his punis hment , and th e case th at he primaril y r eli es on addresses a sufficiency challe nge to the evidence supporting the ju ry ’ s determination that enha nce ment allega tio ns were
true

. See Flowe rs v. State , 220 S.W.3d 919 , 925 (Tex. Crim. App. 2007). According l y , we wil l16

constr ue this s et of argument s as a chal lenge to the sufficiency of the evidence linking Montiel to the prior felony convictions listed as enhancement allegations

. See Bridges v. State , No. 02

- 06

- 00418

- CR, 2007 WL 2693902, at *3 (Tex. App.

— Fort Worth Sept. 13, 2007 , pet . ref ’ d) (mem.
op., not designat ed for publicatio n).

When reviewi ng the legal sufficiency of the evidence, we view all the evidence i n the light most favora ble to the judgment to determine wheth er an y r ational trier of fact could have found the essent ial elements b eyond a reasonable doubt. Jackson v. Virg in ia , 443 U.S. 307,
3 19 (1 979); Stahmann v. State , 602 S.W.3d 573, 5 77 (Tex. Crim. App. 2020)

. In making this determination, “[w]e view the evid ence in the light most favorable to the verdict a nd con sider all of t he adm itted evidence, regardless of w hethe r it was properly admitted.” Stahmann , 602 S.W.3d
at 577

. “The jur y is the sole judge of credibility and weight to be attached to the testimony of the witnesses.” Id. “Juries can draw reason able i nferences from the e vidence so long as each inferen ce is supported by the evidence produced at trial,” id. , and are “free to apply common sense, knowledge, and experience gained in the ordinary affairs of life in drawing reasonable inferences f

rom th e evid ence,” Eustis v. Sta te , 191 S.W.3d 879, 884 (Tex. A pp.

— H ouston [14th Dist.] 2006, pet. ref ’ d).

“ To establish that a defendan t has been con victed of a prior offense, the State must prove beyond a rea sonable do ubt that (1) a prior conviction exists, an d ( 2) the defenda nt is linked to that conviction. ” Fl owers , 220 S.W.3d at 921

. “ No specific document or mode of proof is require d to prove the se two elements. ” I d. “ While evidence of a certified copy of a fi nal judgment and sentence may be a preferred and convenient me ans , t he State may prove both of these ele ments in a number of different ways, ” including through the d efendant ’ s stipulation

o r admission, thro ugh testimony by a person who observed the defenda nt be ing convicted and17

can identify the defen dan t as the perso n prev iously convicted, or through documen tary proof that c ontains sufficient informa tion to establish the existe nce of the pri or con viction and the defendant ’ s identity as the person previo usly co nvicted

. Id.

Links to the defen dant can b e shown throug h diffe rent means, including allowing the j ury to compare photogr aphs with the appearance of the defendant at trial or compare ide ntifying information such as name s, sex es , height s , eye color s , and date s of birth. S ee Williams v. State , 946 S .W.2d 886, 895 (Tex. App.

— Waco 1997, no pet.)

. “ A prior conviction can be proven by the introduc tion of the ‘ pen packet, ’ which is the file fr om the penitentiary where the defendant was an inmate and which contains the record of the inmate ’ s prior convic t ion , ” provided that the p en pack et not on ly proves the e xistence of a conviction but also links t he conviction to the defenda nt. Bridges , 2007 WL 2693 902, at *3

. Provi d ed that the proo f of identity is sufficient, no error will be fo und on appeal. Littl e s v . State , 72 6 S.W. 2d 2 6, 32 ( Tex. Crim. App. 1984).

Be fore the exhibits mentioned above were admitted into evidence , the trial cour t admitted as an exhibit the booking shee t for the offenses at issue in this case

. T he booking shee t , like the indictmen t , lists the n ame “ R eymundo Montiel. ” The booking sheet also l ists Montiel ’ s date of birth and social security number and includes a physical de s cription of him . In additi on, the booking sheet contains Montiel ’ s fingerprints ; identifies his ali as as R eym u ndo Mo n tiel, Jr. ;

a nd bears Montiel ’ s si gnature, which he signed as “ Reymundo Montiel, Jr. ” The booking sheet also contains photo graphs of Mont iel.

As set out above, the judgments and accompanying documents corresponding to the enhancement allegations wer e admi tted into e vidence through State ’ s e xhibits fiv e, eight, sixteen, and seve nteen

. Those exhibits and others were admitted th rough the test imony o f18

Grantham, who was an investigator fo r the district attor ney and who had received training in fingerp ri n t i dentification

. The e xhibits all contain a certifi c ation from the circuit clerk for Whiteside County, Illinois, stating that s h e is the keepe r of re cord s for the court an d th at the documents are “ true and correct ” c opies of the documents r elated to t he prior conv ictions

. C f. Flowers , 220 S.W.3d at 921 (n oting that certified copies of final judgment and sentence is “ a pref erred an d conven ient ” wa y of proving prior conviction).

State ’ s exhibit eight contains a complaint and judgment of convi ction for

“ Re y mundo Montiel ” fo r the offense of aggravated battery. In the plea pap erwork for that offense, the defendant signed his name as “ R eym undo Montie l Jr. ” as Montiel did in the book in g sheet in this case. Although the exhibit d id not include the date of bi rt h for the de fendan t, it did list the date of the defen dant ’ s conviction and the defenda nt ’ s age when he was convicted.
State ’ s exhi bit seventeen contains a complaint and judgment of conviction for the offense of aggravat ed battery for “ Reymundo . . . Mo n tie l Jr. ” The name app earing o n the paperwork and judg ment is “ Reymundo Montiel, ” but the signature on the plea paperwork is for “ Re ymundo
Mo ntiel Jr. ” The date of birth listed in the exhibit is the same as Montiel ’ s as it appears in the booking sheet f

or t hi s case . State ’ s e xhibit sixteen co ntains a compla int , plea paperwork, and judgment of convi ction for “ R eymundo Mo ntiel ” for the offense of ag gravated battery. T he exhibit lists the defe ndant ’ s date of bi rth as being the same as M ontiel ’ s. State ’ s exhi bi t five contain s, a mong other d ocume nts, a complain t and a judgment of convi ction for aggravated battery for “ Reymundo . . . Mont iel, Jr. ” and specifies that the defendant ’ s date of birth is t he

same as Montiel ’ s .

In addition to the exhibits discuss ed abo ve, the trial cour t admitted other exhibits d uring Grantham ’ s testimony that helped link Montiel to the four pr ior felony convicti o ns .19

One of th ose exhibits was State ’ s exhibit two , which is a n Illinois cr iminal history that lists all known convict i ons for a defendant n ame d Reym undo Montiel , J r., with th e same date of birth

as Montiel ’ s . T he circu it clerk certifi ed that the computer prin tout is “ a true and correct copy of the original d ocument as the same app e ars in the re cords on file in my office

. ” Cf. id. at 925 (de t er mining that “ a certified copy of a comput er printout ” from trial court setting out prior conviction “ was sufficie nt ” when consi dered in conj unction with another exhibit “ to prove beyond a reas on able doub t the e x istence of ” prior co n viction ). In his testim ony, Grantham explain ed that the four prior aggravated

- battery convi ctions discussed above were l isted in the

c ri minal his tory and that each of the four entries for those convictions se parately listed a date of birth for the defenda nt , tha t the dates of bi rth were all the same, and that Montiel ha s the same date of birth

. Another linki ng exhibit was State ’ s exhibit f our , which is a pen packet fo r a conviction for “ Reymundo Montiel, Jr. ” Although th e entire exhibit was not certifi ed by the circuit clerk, the judgment includ ed in the pe n packet contains a certification from the circuit clerk stating that the judgment i s “ a true and correct copy of the o riginal document as the same

a ppears in the r ec ords on file in my office, ” and th e pen pack et reflects th at it was prepared by the record supervisor for a correctional cent er in Illinois. T he date of birth and social sec urity number l ist ed in the exhibi t are the same as Montiel ’ s . The exhibit also contains pho tographs and a physical descriptio n of the defend ant and a fingerprint card of t he defendant ’ s fingerprints

. While testifying, Grantham explained that he had receiv ed training in fingerprint i dentification,

co mpared the fingerprints from Montiel ’ s booking sheet w ith the fingerpr ints in Sta te ’ s exhibit
f our , and had no doubt that the fingerprints belonged to the same person. F urther, Grantham testified that the pho to graphs from Mo ntiel ’ s booking she et and from St ate ’ s exhibit four20

appeared to be photos o f Montiel. Additionally, Grantham re lated that the offense pertaining to the pen packet was listed in the c rimi nal hi story from Illinois.

Given our standard of review and consider i ng the reasonable inferences that the jury could have made f rom this evidence, we conclude that the j ury could h ave reasonab ly
inf erred that the individual who is the subject of the four prior aggravated

- battery convictions was Montiel and , a c cordingly, th at the evidence is legal ly su ff icient to link Montiel to the felony convictions identified in State ’ s e xhibits f ive, eight, sixteen , and seventeen. See id

. To the extent that Mon tiel is asserting in this issue that the trial court erred by

a dmitting all s ixteen exhibits be cause the y were not pro perly auth enticated , we cannot sustain this appellate comp la int. Appe l late courts review a trial court ’ s decision regarding the a dmission of evidence ov er an authentication objec tion under an abuse

- of

- discretion st andard. See Hunte r v. State , 513 S.W.3 d 638, 6 40 (Tex. App.

— Houston [1 4th Dist. ] 2016 , no pet.). The auth entic ation of ev idence is a co ndition p rece de nt to t he admissibility of the evidence

. See Tex. R. Evid. 901(a); Tienda v. State , 358 S .W.3d 6 33, 638 (T ex. Crim. App. 20 12). Under the Rules of Ev idence, the proponent must “ make a threshold showing that would b e ‘suffici e nt to support a finding t hat the matter in question is what its proponent claims.’ ” Tienda , 358 S.W.3d at 638 (quoting Tex. R. Evid. 901(a) )

. Whether the pr oponent has crossed th e eviden tiary thres hold is a preliminary determinati on for th e tr ial court, but th e ju ry must determine whet her the “ ite m of evidence is what its proponent claims. ” Tienda , 358 S. W .3d at 638. “ The preliminar y question for the trial court to decide is si mply whether the proponent of the evidence has suppli ed facts that

are suf fi cient to support a reasonable jur y determination that the evidence he has proffered is authentic. ” I

d.21 “ Rules of Eviden ce 901 and 902 go vern the a uthe ntication requirement. ” Jo nes v. State , 572 S.W.3d 841, 848 (Tex . App.

— Houston [14th Dist. ] 20 19, no p et.). Rule 901 sets
out a non - ex hau stive list of exam ples of the types of extrin sic evidence that will satisfy the

au then t i cation requi rements. Tex. R. Evid. 901(b). For example, Rule 901 allows evidence to be authentic ated throug h expert t esti mony comp aring the e vidence with a nother s pecimen

. Id. R. 901(b)(3).

In contrast, Rule 902 ide nti fies certain types of evidence that are self

authen ticating an d do not need extrinsic evid ence of authe nticity. Id. R. 902. “ A document may be authenticate d under either Texas Rule of Evidence 901 or 902 and need not be authenticated under both. ” Jon es , 572 S.W.3d at 848. “ [M] eeting the requireme nts of one part of Rule 902 establishes the d ocuments are self

- authenticated. ” I

d. Rule of Evid ence 902 allows for sel f

au thentication of copies of “ an official record

— or a copy of a document that was recor ded or filed in a public office as authorized by law” if the copy is certified as correct by the custodian or another person authorized to make t he certificatio n. Tex. R. Evid. 902(4). The Rules defi ne “record” to include “a memorandum, report, or data c ompilation.” Id. R. 101(h)(4).

Ex cept State ’ s e xhib it two, which is the crimi nal history , and State ’ s exhibit four, which is a pen packet, t he r emaining exhibi ts conta in certified copies of jud g ments and other accompanying documents for pr ior offenses committed by an individual with Monti el ’ s first and last name in Whiteside County , Illinois

. The certifications were made by the circu i t clerk ,

con tained her and her deputy clerk ’ s sign ature s, and specified th at she is the “ kee per of the records, files [,] and seal ” and that the judgment s o f conviction alo ng with other a ccompanyi ng documents we re “ true and correct ” copies

.22 By certifying that she w as t he “ ke eper ” o f the original files , the cl erk demonstrated that she was a “ custod ian ” of those records as contemplated b y Rule of E vidence 902. See id. R. 90 2(4); Jones , 57 2 S.W.3d at 849. Moreover, the circui t clerk certified that the docu ments in the exhi bits were “ true and correct ” copies of the criminal records as required by Rule 902

. See Tex. R. Evid. 902(4). Acc ordingly, th e trial court would not hav e abused its di scretion by determini ng that the fourteen exhibits met the requ iremen ts of Rule 902

. See id.
R. 101(h) (4), 902(4) ; Jones , 57 2 S.W.3d at 849

.

A s discussed previously , t he first exhibit was a c riminal history comp il ation for

“ M on tiel , Reymu ndo Jr. , ” and listed c onvictions for that individual from Illinois . The e xhibit

c onta ins a certification from t he same circuit clerk who w as the custodi an of the records listed above stat i ng that the clerk “ hereby certif [ ies] th e foregoing t o be a true an d correct copy of the origina l do cument as th e same appears in the record s on file in my office. ” Moreov er, thi s exhibit is a comp ilation of the offense s set out in the exhibits above. Based on this record , the
tr ia l court woul d not have ab u sed its discr etion b y de termining that this exhibit also met the requirements of Rule 902 and w as self

- au thenticating under t hat rule. Cf. Flowers , 22 0 S.W.3d
at 922

- 23 (noting that “ [a] computer

- generated compilation of information setting out the speci f ics of a crim inal conviction that is certified as correct by the county or distric t clerk of th e court in which the convictio n was obtained is admissib le ” as self

- aut henticating under Rule 902 )

. Re garding S tate ’ s exhibit four , that exhibit do es not cont a i n the type of

cer tification described above . Instead , the exhibit included a lette r from the record supervisor fro m a correct ional facility in Illino is stating that the p en packet contain ed the requested information pertaining to Montiel , but the exhibit also incl uded a judgment with a certification from the circuit clerk st ating that the judgment wa s a true and corre ct copy o f the judgment23

from the re cords in her of fic e. Cf. Jones , 572 S.W.3d at 849 (concluding that pen packets from another state were s e lf

- aut hent icat ing)

. In any event, exhibit four contained photographs of the defendant that could be compared with the photogr aphs from Montiel’s booking sheet and with his appearance at trial, and Grantham explained that the fingerprints contained in exhi bit four and i n Monti el’s booking sheet were from the same person. See Reed v. State , 811 S.W.2d 582, 587 (Tex. C rim. App. 19 91) ( determ ining that a uthentici ty of pen pack e t was “ corroborated by the testimon y of the State ’ s expert witness who stated that the fingerp rin ts from the fing erprint card in the pen packet and the fingerprints taken from the appellant on the morning of t he punishme nt hearing were made by the same individual, the appella nt ” ); Cooks v. State , No. 05

- 02

- 01809

- CR, 2004 WL 42612, at * 1 (Tex. App.

— Dal las Jan. 9, 2004 , no pet.) ( op., not de signated for publication) ( concluding t hat trial court did not abuse it s discretion by admitting evidence of prior conviction where each exh ibit contained certified copy of judgment and where fingerp rin t expert testif

ied that fin gerp rints in exh ibits and d e fendant ’ s known fingerprints were same). Accordingly, the trial court wo uld not ha ve abused its discret ion by conclud ing that the exhibit was sufficientl y au thenticat ed consistent with Rule of Evidence 901. See Tex. R. Evid. 901; Reed , 811 S. W.2d at 587.

In this issue, Montiel also contends th at the trial court erred by allow ing
Gran tham to testify as a n expert on f ingerprint identificati on . Under R ule 702 , a trial court
may admit expert testimony “ if the expert ’ s s cientific, tech nical, or other specialized knowledge

w ill help the trier of fact to understand the evidence or t o determ ine a fact in issu e. ” Tex. R. Evid. 702. Before a witn ess may test ify as an expert , the trial court must make three sepa rate inquir ies : (1) is the wi tness qual ified “ as an expert by reason of his knowledge, skill, experience, or ed ucation ” ; (2) i s “ the s ubject matter of t he testimony . . . an appropriate one for expert24

t estimony ” ; and (3) would “ admitting th e expert testimo ny . . . actua lly assist the fact

- finde r in deciding the case. ” Vel a v. State , 209 S.W.3d 128, 131 (Tex. Crim App. 2006) (quo ting Rod gers v. State , 20 5 S.W.3d 525, 527 (Tex. Crim. App. 2006 ) )

. “ These conditions are commonly referred to as (1) qualificati on, (2) reliab ility, and (3) relevance. ” I d. Appellate court s rev iew

a trial court ’ s ruling on the admi ssibility of scienti fic exper t testimony under an abuse

- of

discretion standard

. See Weatherred v. State , 15 S. W .3d 540, 542 (Tex. Crim. App. 2000).

D uring the hear ing addressing the admi ssibility of Grantham ’ s testi mony , Montiel limited his arguments to Grantham ’ s qualificat ions, a nd his arguments on appeal a re similarly aimed at his qu alificatio n s. Accordingly, in resolving this issue, we need not ad dress the reli ability and rel evancy p rongs. See Turner v. State , 252 S.W.3d 571, 584 n.5 (Tex. App.

— Houston [14th Dist.] 2008 , pet. ref ’ d) ( determini ng that objection to expert wi tness ’ s q ualificatio ns did not preserve for appellate review claim that expe rt opinion was scientifically unrelia ble) ; see a lso
Russeau v. Sta te , 171 S.W.3d 871, 8 83 (Tex. Crim . App. 2005) ( explain ing t hat fin gerprint comparis on testimony is generally admissible un der Rule 70 2 “ because it is re liable and it assists the trier of fa ct in its task o f det e rmining w hether ” fingerprint is that of part icular person)

.

Before th e trial court made its ruling , Gran tha m explained that he is an investigator and that his job requires him to collect jud gments from other jurisdictions and
to comp are sets of fi ngerprints. In addi tion, Grantham testified that he is c ertified in basic fingerpr in t identification by the Tex as D istrict and Cou nty Attorney s Assoc iation. Although
Gran tham agreed that th e Association is an advocacy group and that he did not receive hi s certification throu gh the Department of Pub lic Safety or the F B I , he related that he is quali fied as a fingerp rint

- identification expert for ink comparisons , that he rece ived his training from the fingerprint expert for the Bexar County She r iff ’ s Offic e , and tha t the e xpert certified him

. Cf.25

Dominguez v. S tate , No. 08

- 13

- 00143

- CR, 2015 WL 113774 2, at * 4 (Tex. Ap p.

— E l Paso
Mar. 11 , 2015, no pet.) (op., not designated for publication) ( observing that certification from
F B I is not required to testify as fi ngerprint exper t) ; se e also W yatt v. Stat e , 23 S.W.3d 18, 27 (Tex. Crim. App. 2000) ( upholding trial court ’ s rul ing allowing witness to testify even though witness was not “ licensed ” because witness had specialized k now ledge fr om edu cation an d
p ractical ex perience)

. Acc ording ly, we conclude that the trial court did not abuse its d iscretion by deter mining that Grant ha m was quali fied to testify as an exp ert on finger pri nt ide ntification.

For these reasons, we overrule Montiel ’ s third is sue on a ppeal.

CO NCLU SION Havin g o verruled all of Montiel ’ s issues on appeal, we affirm th e trial court ’ s ju dgm ents of conviction

.

__________________________________________ Th omas J. Baker , Justice Before Chief Justi ce Byrne, Jus ti ces Baker and Smit h Affirmed Filed: May 21, 2021 Do Not Publish